A new essay in a Harvard Journal of Law & Public Policy symposium argues that the Supreme Court missed a chance to sidestep the constitutional question in Trump v. Barbara. The Court has a well-established practice of resolving cases on statutory grounds when possible, the essay notes, but Chief Justice Roberts's majority opinion gave no attention to the statute in that case.
Justice Kavanaugh was the only Justice to seriously engage the statutory arguments, according to the essay, and he found them enough to decide the case. Resolving the case that way, the author argues, would have let the Court avoid the larger Fourteenth Amendment question and may have allowed broader agreement among the Justices.
The essay also suggests that the statutory question, involving the meaning of Section 1401 at the time it was adopted, is easier to resolve than the disputed original meaning of the Citizenship Clause. It cites the principle that statutory terms mean what they conveyed to reasonable people when enacted, a point the Court itself reaffirmed in Loper Bright Enterprises v. Raimondo. Other symposium contributions include pieces by Gene Hamilton, Eric Wessan, Steven J. Menashi and Elias Neibart, plus a debate between John Yoo and Linda Denno.